The Judiciary AP Government Spring 2016
[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers"...[a]s liberty can have nothing to fear from the judiciary alone...[it] would have every thing to fear from its union with either of the other departments Alexander Hamilton, The Federalist, No. 78
Characteristics of the Federal Judiciary Judicial review: the power to interpret the Constitution Federal judiciary is an adversary system, believing that arguing over law and evidence guarantees fairness Criminal law concerns crimes against the public law Person s liberty is at stake (can be imprisoned) Defendants have a right to an attorney even if they re unable to afford one (Gideon v. Wainwright, 1963) Civil law governs relations between individuals and defines their legal rights Penalties are usually monetary Federal government not the judiciary brings all federal criminal cases Government can also be a party in civil cases
Characteristics of the Federal Judiciary, Part II Judicial branch cannot initiate legal action Judges decide only justiciable disputes They can only hear civil lawsuits growing out of real cases, controversies Plaintiff must have standing to sue; experienced or be in danger of experiencing direct or personal injury Practice of judicial restraint Department of Justice prosecutes cases Attorney general is assisted by solicitor general, plus 94 U.S. attorneys and roughly 1,200 assistant U.S. attorneys
Structure of the Judiciary District Courts are the worker bees of the federal judiciary Have original jurisdiction Handle immense caseload In most cases, render final decision Courts of Appeals have appellate jurisdiction Judges are bound by precedent Located geographically in circuits Decisions are usually final Supreme Court decisions are final...somewhat Judicial federalism: division of judicial power between federal and state governments/courts
Politics of Appointing Federal Judges Interesting point; no Constitutional requirements for serving on Court Washington s precedent: ideological, political allies Initial choices: senatorial courtesy, consulting staff, Justice Department, pressure from interest groups Senate advice and consent Judicial nominees referred to Senate Judiciary Committee Recess appointments may only serve until the next Congress convenes Increasing scrutiny of nominees by Senate
Politics of Appointing Federal Judges, Part II Race, party, gender Presidents almost never appoint someone from a different party Currently, judicial nominees are more representative of the ethnic makeup of the nation Ideology Conservative vs. liberal justices Perpetuation of ideology at lower-level courts Judicial philosophy: activism vs. restraint Judicial activism: belief that courts should strike down laws inconsistent with stated, implied Constitutional values...vs. judicial restraint: belief in striking down laws that only violate the literal meaning of the Constitution
Eight Steps to Judgment Background The Supreme Court is not obligated to grant review to all cases Must decide which cases to hear (rule of four) Must decide the legal question at issue Must render a decision Court reviews roughly 1% of cases appealed to it
Eight Steps to Judgment, Part II 1. Review appeals Petition for writ of certiorari, or cert formal petition seeking the Court s review may from from a state OR a federal court often from prisoners If court grants cert, case added to docket Roughly 10,000 appeals, 100 cases decisions per term 2. Grant appeal Will review if case raises a broad or substantial federal question Tends to review when lower courts disagree Rule of four: four justices must be interested in a petition
Eight Steps to Judgment, Part III 3. Briefing the case Each side prepares written briefs presenting legal arguments, relevant precedents, historical background Justices and law clerks study these Outside groups often file amicus curiae briefs 4. Oral arguments are held Each side is allowed 30 minutes Justices freely interrupt
Eight Steps to Judgment, Part IV 5. Meeting in conference Justices meet on Fridays and discuss cases Meetings are private After each justice as given his/her view of the case, writing of majority opinion is assigned 6. Explaining decision Opinion of the court: the court s principal method of expressing views, reasoning to the world Must explain reasoning of the majority (majority opinion) Dissenting and concurring opinions are also written Justices hope that dissenting opinions would become future decisions or precedents
Eight Steps to Judgment, Part V 7. Writing the opinion Justices write drafts and send to others for comments Assisted by clerks Goal is to win support of other justices Signs of dissent may invite others to ignore court s ruling 8. Releasing the opinion
Influences on Supreme Court Decisions Chief justice Sets the tone, controls the conference, assigns the most opinions, and usually, takes the most important, nation-changing decisions for himself Will usually write the opinion in significant cases (like Obamacare) Law clerks Each justice picks own law clerks Influence of law clerks? Stevens (Rutledge), Rehnquist (Jackson), Roberts (Rehnquist), Kagan (Marshall) Solicitor General As the tenth justice, approves cases to be argued before Court
Limits on Judicial Action Adherence to Precedent Stare decisis: stand by what is decided Congress, President Judges are appointed by the President and confirmed by Congress Court relies on President to enforce laws Congress may enact laws to skirt Court findings and opinions